New smoking ban getting set to go

The proposed new anti-smoking regulations for Houston are getting closer to reality. One thing to note is that several previously-expressed concerns appear to be addressed in the new ordinance.

Houston's existing ordinance prohibits smoking in restaurants, but allows it in stand-alone bars. Smoking also is allowed in bars that are part of restaurants if the owners take steps to prevent smoke from drifting into dining areas.

The broader ban would make it illegal to smoke in all bars, except those that qualify as "tobacco bars" because more than 20 percent of revenue comes from tobacco sales. Retail tobacco shops and all outdoor patios also would be exempt.

White said last week that he is working to persuade other mayors in the state to push similar rules in their cities. A regional smoking plan would ease concerns from some bar owners that customers would go outside city limits to find bars that allow smoking, he said.

"Somebody needs to go first, and it's Houston," White said.

So patios are exempt, as are cigar bars, and there's a push to draw other municipalities in so that local bars have less to worry about from smoke-friendly competition outside city limits. There are still other concerns, as noted in these previous posts, but that covers a fair bit of ground.

As the story notes, a ruling in an Austin lawsuit will likely also affect what City Council ultimately does.

A federal judge on Wednesday struck down part of Austin's smoking ban and found that some of its enforcement provisions were "unconstitutionally vague."

The decision by U.S. District Judge Sam Sparks did not overturn the smoking ban, enacted by voters in May 2005. But Sparks did clarify what steps a business owner must take to be in compliance with the ordinance. Sparks was presiding over a lawsuit filed last year by a group of bar owners.

Sparks said the businesses must post "no smoking" signs and remove ashtrays and other smoking accoutrements. However, the owner can no longer be held liable for not taking additional steps if patrons continue to smoke, Sparks ruled.

[...]

Anne Morgan, chief of litigation for the city, however, said the practical effect of the ruling would be minimal. The overall ban is still in place, and most businesses are fully abiding by it.

But the focus of enforcement will now turn to the individuals smoking in public places rather than the owners of those establishments, Morgan said. The city has not cited individuals up to this point.

The city has not decided whether to appeal the decision, Morgan said. The ordinance, stemming from a citizen-initiated referendum, cannot be changed by the City Council for two years after its enactment.

Jennifer Riggs, a lawyer for the bar owners who sued, said her clients were delighted and relieved.

One plaintiff, Ego's owner Gail Johnson, is facing multiple criminal misdemeanor charges for allowing smoking in his bars. Riggs said those charges should be dismissed; prosecutors will have to review the cases based on this ruling, Morgan said.

Before this decision, the city's rules required the bar owner to take several "necessary steps" to enforce the ordinance, including posting signs; removing ashtrays; asking the patron to stop smoking or to leave if he or she refuses; and denying service to a person who is smoking.

Under those rules, Sparks found that bar owners could still be held liable, even if they followed the city's guidelines.

"The city persists in dodging the question and failing to give definitive guidance to business owners and operators about how they might avoid liability under the ordinance," the judge wrote in his ruling.

"Although the court suspects that there are some bar owners and operators purposely flouting the ordinance and/or enforcing it with a wink and a smile, this does not lessen the importance of the constitutional right of citizens to know what conduct is and is not prohibited by law," Sparks continued.

Link via McBlogger, who approves of the ruling. As do I, since ultimately a bar owner can only reasonably do so much, and the onus needs to be on the person who is smoking, as that's the actual illegal act. As the current version of Houston's revised ordinance is similar to Austin's, I trust this issue will be addressed before the law is passed.

Posted by Charles Kuffner on October 05, 2006 to Local politics | TrackBack